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Commission approves variance to allow 10-foot retaining wall

Monday, July 18, 2011 by Elizabeth Pagano

The Zoning and Platting Commission has approved environmental variances that will allow a 10-foot retaining wall to stand in southwest Austin.


The wall was not part of the approved construction plan, and construction of the homes on the site was red-tagged as a result. After obtaining a permit for the wall, construction remained stalled, due a lack of required variances.


Last month, the Environmental Board approved the variances, with a stipulation that local builders Taylor Morrison pay $30,000 to the Austin Parks Foundation as mitigation. The board, in a subsequent meeting rescinded the stipulation. (At the time, there was some debate over whether or not the board could request a donation to a third party. See In Fact Daily July 7, 2011)


Instead, the variance was granted with the condition that 33 new trees be planted in the area, and that additional topsoil be added to the area above the wall.


An existing restrictive covenant on the property dictated the number of trees.


“At that time the site conditions were different, Taylor Morrison was building 90-foot wide lots… There is a provision in the restrictive covenant that said every lot in the subdivision should have three trees on it. Now Taylor Morrison, in this section, is building 50-foot wide lots, and has put two trees on every lot,” said attorney Peter Cesaro, with Graves, Dougherty, Heron and Moody.


“That restrictive covenant was from the early 90s and shame on us for not amending that to reflect current conditions,” said Cesaro.


Cesaro also apologized on behalf of his clients for requesting a variance after the wall had been constructed, saying, “I know that it’s not an ideal practice, and it’s not Taylor Morrison’s practice.”


“I think if Taylor Morrison had to do it over again, they probably would have insisted to be able to submit the application to the city,” said Cesaro. “They have been holding this property and enduring the carrying costs for about 18 months now and incurring legal fees and engineering fees on top of this. So they have been incurring some penalties because of this situation.”


Part of the reason the city sought mitigation in a case where variances are typically granted, are the “costs” incurred from their lack of input.


Commissioner Donna Tiemann noted that, were the city notified in advance, they might have come up with a less-extreme landscaping plan that did not require a 10-foot retaining wall. She also took the opportunity to question what has become common building practice in the area.


“There seems to be this perceived demand that everyone has to get a flat backyard. But, when you look at some of the older developments in West Austin, be it north or south, in the topographically challenged areas, it’s more common to see houses siting with the topo instead of against it. I would encourage developers to really study the precedents and identify the value in how people have done things. You can learn from that,” said Tiemann.


“When I see these huge retaining walls, they simply don’t make sense to me… It doesn’t seem a sustainable system to me,” said Tiemann. “Almost all the rest of the city supports flatter backyards. That side of town, it’s more of a challenge. It may not be the place to go for that sort of thing.”

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